An Explanation For Why UMG May Be Right That It Can Pull Down MegaUpload's Video [Updated]

from the but-it's-still-sleazy dept

See the update at the end

The legal fight between Megaupload and Universal Music Group keeps getting more and more... odd. After the court gave UMG basically a day to respond, the company filed its response and made a rather surprising point: that a deal with YouTube/Google lets it take down videos it has no copyright over. This seems odd, and lots of people are screaming about some crazy clause that lets UMG censor anyone's videos. But I think I understand what's going on here -- and it's a very specific situation, where UMG sorta used a loophole -- so read on for the details. UMG is still being questionable, sleazy and short-sighted... but probably legal.

The key part of the company's legal response likely is accurate and probably kills MegaUpload's case. There are a few different ways that content can be taken down off of YouTube concerning copyright claims. One is via ContentID, the automated system that matches fingerprints. One is via a DMCA takedown notice. And one is via YouTube's Content Management System. This last one doesn't get much attention and isn't that well known, but it's basically halfway in between the other two (loosely speaking), granting partners the ability to spot and block videos that aren't matched by ContentID, but without sending a DMCA takedown. If you're familiar with the details of the system (which it appears MegaUpload and its lawyers were not), it was actually easy to tell this was a CMS block by the message that appeared on the blocked video. It said "This video contains content from UMG, who has blocked it on copyright grounds." That's the message that shows up on CMS blocks. DMCA takedowns say that the video is "no longer available."

So, on that point, UMG may very well be correct in its filing, that it's not subject to DMCA sanctions because it didn't actually file a DMCA notice. This is kind of a weak excuse, frankly, and really calls into question how YouTube's CMS system works, more than anything else. In theory, this also means that the only retribution that can happen for UMG wrongly taking down the videos of others is that Google cuts them off. But seeing as Google has a big partnership with UMG to build and run Vevo, that's unlikely to happen. That's a bit scary, but it suggests UMG more or less has a free pass to shut down certain videos it doesn't like without much recourse (well, beyond public ridicule).

That said, a part of UMG's explanation isn't entirely clear, but I have some guesses as to what happened. UMG claims that its agreement with YouTube goes beyond just copyright, and that it's allowed to pull videos for other (unnamed) reasons. This is new, in a sense, because YouTube has always suggested that CMS is for copyright issues -- and, in fact, the original message on the video, did, in fact, say that it was a copyright issue. YouTube later changed that message to say it was a terms of service issue. And that provides a clue.

I believe that part of the Vevo agreement is that UMG gets to "pull" videos of its own artists from YouTube for the purpose of putting them on Vevo. That's the intention anyway. I know when Vevo launched, that was part of the deal. All the YouTube videos of UMG artists magically jumped over to Vevo. So, I'm guessing that UMG basically used this loophole, which was supposed to be about taking videos off YouTube for the purpose of putting them on Vevo, and realized it could just "take the videos off YouTube" as long as they had UMG artists in them, without ever putting them up on Vevo.

In other words, due to the specific nature of the Vevo agreement -- which was intended to move videos from YouTube to Vevo -- UMG can pull videos that show its artists off of YouTube. Of course, in this case, it used it for an entirely different purpose, which was to try to censor this ad. That backfired in all sorts of ways, and it sounds like YouTube told UMG to knock it off, knowing that this was not the intention of the agreement at all. And, for what it's worth, UMG has stopped getting the video blocked, and says it will allow it to stay up for now.

This situation is messy and silly, but it seems like an unintended result of contract language over Vevo that UMG exploited. It may be legal, but in the end, it was pretty dumb by UMG. This whole thing, in true Streisand Effect fashion, actually drove a lot more attention to the ad. And even if it was legal, it sure makes UMG look petty and vindictive.

Update: Received a response from a YouTube spokesperson which makes this a little more interesting.

Our partners do not have broad take-down rights to remove anything they don’t like from our service. In limited cases, if they so choose, and based on exclusive agreements with their artists, partners can take down live performances.

That confirms some of what I thought: that UMG does not have the right to take down any videos (as people keep implying), but that it may be able to take down some videos. The new bit of info is that it's just live performances. So, that would suggest UMG is even slimier. They tried to claim that those video clips of artists in the MegaUpload song were "live performances." That's clearly bogus.

Update 2: And... MegaUpload has conceded that its restraining order request is moot, and so the judge has denied it (pdf), while giving the company the right to file for a preliminary injunction and for discovery. So, not much of anything, but the case will likely continue.

Reader Comments

Hmm

That would explain why UMG doesn't seem to have made any attempt to pull the video off any other site.

Mike - you've said before that a private company can refuse to serve any customer without giving a reason - however when you have a de-facto monopoly you do become something akin to a public service - and so it would make sense if you had some sort of legal obligation to offer you services to everyone equally. I am aware that there are many people caught on this in-between Youtube blockage and those that are less high profile seem to have no way of getting around it.

Re: Re: Hmm

No, Google isn't a public service because competitors are allowed to freely enter the market (though laws like SOPA will seek to intentionally change that).

What is a public service are things like cableco and broadcasting because laws do prevent competitors from entering those markets. and, to that extent, reasonable and powerful pro-consumer regulations should be in order.

Unfortunately, not in America. Big corporations get the best of both worlds, they get to have the government granting them monopolies without the requirement of following strong pro-consumer laws. They almost get an unregulated monopoly and consumers get the worst of both worlds. Free market capitalism only where it helps big corporations, anti-competitive laws otherwise.

Re: Re: Re: Hmm

Agreed. I didn't say it's a public service. But I do agree with Richard. Its size is so huge that what it does have deep implications in the lives of millions. Just an idea but maybe when you reach that large scale you should be governed by public service laws. If those work or not due to big corporation lobby that's another story.

Re: Hmm

Re: Re: Hmm

they removed it from vimeo too...

Please Google that for me. I've been trying to find a reputable source to nail that fact down, and apparently my google-fu is weak today. Yeah, various people say that vimeo got a takedown notice. But others report that the video is (was always?) available at vimeo.

Re:

Wow

Shit that was brilliant (legally speaking) and a complete, massively epic fail at the same time.

But Mike, while it wasn't a DMCA notice, Youtube is kinda public. Do the terms of service of the site explicitly say that they can kill any video, for any reason any time at their own discretion? If not then Megaupload might have a case against GOOGLE itself regardless of the said loophole.

Still, I don't like MAFIAA as a whole but UMG managed to get me to loathe them. I'll be watching for products with the Universal brand on them. No more money from me on their pockets. Their megalomaniac way of thinking (Like we are almighty so shut up and do as we say) has gone way past the limit. Dodd insinuating that a Great Firewall of America is ok is way beyond the limit (and that considering all the child porn idiocy from the MAFIAA). They are out of control.

I've seen your reply to my tweet, thanks. This article is very informative. And if you ask me it's very good material for the SOPA mark up that's running now. If UMG abused a loophole then please answer me, what would keep them from playing God and abusing SOPA like there was no tomorrow?

Re: Wow

I’m more than sure that the lawyers who authorized the takedown (presumably the same ones that wrote the explanation to the Court) would claim that in addition to not violating the law, they did not do anything unethical.

The problem here is that legal ethics (as a discipline) is perceived by legal crowd as just another law, i.e. “everything that is not explicitly prohibited is allowed”. This perception is fundamentally flawed.

Porn copyright trolls say on record that they are guided by the code of professional conduct and since what they do is not explicitly covered by it, it's OK and ethical to continue their extortion business.

Ethics was never a rule-based concept, but more complex reflection of public opinion and wisdom. Legal ethics should address the issues beyond the reach of the law, not to be just another chapter in a codex.

Re: Re: Wow

Jane, I believe that's also an issue of moral decay.

But please don't misunderstand. It's not moral as in "Don't have sex before marriage!" It's morals like respecting the rights of other ppl. MAFIAA does not measure efforts in their crusade for money and this implicates in passing terrible laws and using underhanded tactics. For them this is ethic. They do that because they couldn't care less about anything besides their own interests and pockets. Morally rotten.

Considering...

With such a "who gives a shit" attitude when it comes to other peoples videos and copyright, why on earth would we give these people more authority to do this with SOPA. How this does not instantly raise a red flag that says "Wait a second here, perhaps we are being to hasty". Im just dumbfounded by the level of BS in our government and how they feel that anyone who opposes this damned bill has to be a fucking pirate.

Re: Considering...

With such a "who gives a shit" attitude when it comes to other peoples videos and copyright....

The 'they' in this instance is Google, who allowed an agreement that gave UMG the ability to down videos on Youtube. Using this case as defense for/against SOPA is misplaced and would only serve as a flaw to exploit.

You do not have a 'right' to post things on youtube. They get to decide what is carried on their site, and moreover, who gets to police the works. Just because they made a poor decision in allowing the most biased of parties under the hood is solely the responsibility of Google.

It just happens to be going on at the same time that digital privacy laws are being groomed and molested by congress.

Re: Re: Considering...

You didn't understand what I said then.

UMG took down something that it had not right to take down. It has nothing to do with posting to youtube being a "right". The agreement that Google and UMG have is flawed if it allows for that kind of action to take place, and Google should do whatever it can to fix that as soon as possible.

My tie in with the SOPA is that IF these companies already feel that they can remove whatever they want from sites like Youtube whenever they want to, then WHY would we grant them even greater power with that new law? A law that gives them no penalties for abuses like this. Its guilty till proven innocent for who possible infringed. An intern at UMG should not have the authority to say who is and who is not guilty of infringement under the law.

Re: Re: Re: Considering...

An intern at UMG should not have the authority to say who is and who is not guilty of infringement under the law.

i understood perfectly. See what you have done is taken a contractual agreement for the management of media on one single website, went along a wordy path, and ended up with UMG interns deciding who is subject to federal copyright laws.

My tie in with the SOPA is that IF these companies already feel that they can remove whatever they want from sites like Youtube

Thats also where your tie in ends, because they can remove 'videos featuring their artists' from one site 'youtube'. When you attempt to expand this into the land of "yeah but they could...." or "what if they..." , you might as well bat for the other team.

Re: Re: Re:

Megaupload STILL has a case

Megaupload still has a case because it appears as though UMG pulled the video to maliciously interfere with Megaupload's business. A contract between YouTube and UMG does not give it the right to maliciously interfere with a marketing campaign.

Re: Megaupload STILL has a case

Megaupload still has a case because it appears as though UMG pulled the video to maliciously interfere with Megaupload's business. A contract between YouTube and UMG does not give it the right to maliciously interfere with a marketing campaign.

Possibly. But I don't think that's what they sued for. Could be amended... Either way, given the ultimate result (much more publicity), they'd have a hard time showing damages.

Re: Re: Megaupload STILL has a case

They don't need to show damages just that they were maliciously interfered with and then punitive damages can be awarded. Malice is the key, show that and then damages for economic losses (if any) are the least of UMG's concerns.

I'm leaning more and more towards them (megaUpload) having a major cause of tortious interference against UMG. [see comments below]

Re: *sigh*

Stupid analogy.

Youtube "as is" in the wild pretty much fits the term "rogue site" to a T. Unchecked uploads, tons of copyright violations plain for anyone to see, and so on.

Youtube through Vevo is the perfect situation for labels and artists. It lets them control how their image is displayed, how their work is presented, while at the same time giving their fans the benefit of the exposure.

It's the difference between something that the rights holder can control, and the wild west mentality.

The left and right hands know each other well. It's just hard sometimes for simple minded people to accept that.

Re: Would YouTube lose safe harbor over this?

No, and that would be a bad idea comparable to the Fairness Doctrine. Companies shuold legally be able to choose who they do business with and give special privileges to. Let them be judged in the court of public opinion...

People were discussing this over on BoingBoing and my thought remains the same as to why Google would have given in this way. They did not want to start another battle like they have going with Viacom. Where a another massive corporation keeps them tied up in court throwing money at stupid accusations. HotFile thought the same thing, and they gave in and let WB have a tool that they then proceeded to abuse well outside of the intended use.

It would be nice to show these prime examples of these corporations running wild mad with power to the Congresscritters who seem to think the corporations would only use new laws as intended. That the made up figure of 1.4 million jobs being lost is 1 - a fake number, and 2 - a small percentage of the entire population of the country, who will all have to bear the burdens for a few who can't be bothered to use the tools they have now in the proper manner.

Much like the parents who "NEED" San Fransisco to pass laws banning toys from happy meals to keep their kids from getting fat, it might just be time to tell them to ignore the temper tantrum and tell them NO.

Not True

This does not stand up to scrutiny as YouTube send an e-mail explicitly stating that a DMCA notice was served and that the counter notice I (and I would assume they, although maybe not) filled was against said DMCA notice.

Contracts vs. Law

Just because a contract says you can do something, does not mean that when you do, it is legal.

UMG is saying that contractually they are allowed to remove any video from Youtube that they want, and it may very well be the case that they can. Just because Google inadvertently gave UMG a contractual right to remove any video and not just videos in which they hold the copyright, does not make the removal legal. It only means that UMG did not breach their contract with Google.

The removal action by UMG did create a breach of contract between Megaupload and Google. After reading YouTubes terms of service it makes no mention that videos can be removed by a third party (UMG). Only that Google can remove any video it wants and will remove videos with a corresponding DMCA claim.

UMG has opened themselves up to even greater liability then if they had used the DMCA. By not using the DMCA to take down the video they are no longer afforded the protections given by the law. Megaupload can now prove maliciousness in their intent to interfere with Megauploads business.

On a side note: Why doesn't Google or Apple just buy up the music labels. They have the cash and it would get rid of the thorn in their sides that is the RIAA.

Re: Contracts vs. Law

UMG is saying that contractually they are allowed to remove any video from Youtube that they want, and it may very well be the case that they can. Just because Google inadvertently gave UMG a contractual right to remove any video and not just videos in which they hold the copyright, does not make the removal legal. It only means that UMG did not breach their contract with Google.

Again, I don't believe UMG has the right to remove "any video." Just videos with UMG artists in them.

The removal action by UMG did create a breach of contract between Megaupload and Google. After reading YouTubes terms of service it makes no mention that videos can be removed by a third party (UMG). Only that Google can remove any video it wants and will remove videos with a corresponding DMCA claim.

Not sure this works either. Google has the right to remove any video it wants. That's what it did here. It removed it. The reason why Google removed it isn't an issue because it has the right to remove videos.

update: the video is back on youtube

UMG's legal logic fails here I think

Suppose I sell someone a gun, and we sign an agreement that he can kill anyone he wants with that gun. Do you really think it would be legal if he shot you with that gun and that our contract would exempt him?

I don't think it matters what the contract between Youtube and UMG says. Megaupload was a victim of UMG and UMG had no right to remove their video.

Besides, this CMS option on Youtube, is probably the equivalent of filing a DMCA taken down claim. Just that it's automated.

Re:

AC, please refresh our memory, when exactly is that cold day in Hell scheduled again?

Mikes update:Update: Received a response from a YouTube spokesperson which makes this a little more interesting.

"Our partners do not have broad take-down rights to remove anything they don’t like from our service. In limited cases, if they so choose, and based on exclusive agreements with their artists, partners can take down live performances."

That confirms some of what I thought: that UMG does not have the right to take down any videos (as people keep implying), but that it may be able to take down some videos. The new bit of info is that it's just live performances. So, that would suggest UMG is even slimier. They tried to claim that those video clips of artists in the MegaUpload song were "live performances." That's clearly bogus.

Updated

Freedom of Speach?

So, if I understand this correctly, DMCA violation doesn't apply, so Google and UMG conspired to suppress MegaUpload's freedom of speech. Does the constitution apply in this case or is it only government suppression?

Re: Freedom of Speach?

Tortious interference?

Even if not liable for perjury under the DMCA, wouldn't UMG still be liable for tortious interference?

The elements of that tort of are: '(1) an economic relationship between [the plaintiff and some third person] containing the probability of future economic benefit to the [plaintiff], (2) knowledge by the defendant of the existence of the relationship, (3) intentional acts on the part of the defendant designed to disrupt the relationship, (4) actual disruption of the relationship, [and] (5) damages to the plaintiff proximately caused by the acts of the defendant.' (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.)

Re: Tortious interference?

I've been thinking TI would be an entirely appropriate action against UMG, in fact one could based on their public responses easily prove that they also acted with malice which gives even greater punitive remedies other than the standard remedy for economic loss. Hello contorts ;)

Though I suspect there could also be cause of action for trover and other Assumpsit's to be addressed here too (at a stretch).

It's a very convoluted situation though I have a strong suspicion UMG bit off a lot more than they bargained for when doing this and would dearly love everything to go back to normal when people were intimidated at the flexing of corporate muscle/money that UMG et.al used instead of NOT being intimidated and actually fighting back using all and any means.

Re: Re: Tortious interference?

Some more thinking & reading on this UMG are in a bit more trouble since they are now admitting they Didn't use the DMCA in an official notice they can now not rely on the good faith provision of the DMCA [512(c)(3)(A)(v)] as in Rossi

Therefore Tortious Interference is even more likely to succeed since the DMCA was NOT used, therefore yahoo might even be vicariously liable to some extent as well since they have interpreted the takedown and counternotice as official DMCA's knowingly under their contract with UMG (as UMG states) that it is NOT an official DMCA notice, and also subsequently still kept the video offline trying to keep their safe harbor.

Re: Re: Tortious interference?

would dearly love everything to go back to normal when people were intimidated at the flexing of corporate muscle/money that UMG

I stopped being intimidated by bullies decades ago. The more these companies do actions like this the the more I strengthen my resolve to not give them a single penny of my money if it can be avoided. The less serious I take of their efforts to claim any moral high ground. The more meaningless copyright becomes to me.

Ya know, when they killed Napster I was probably one of the staunchest copyright defenders around. I'd have made someone like OOTB sound downright reasonable.

After a decade of stuff like this, all of Sony's bullshit (the rootkit, killing OS on the playstation 3, among others), their lawsuits (sorry, but regardless of their "infringement is theft" claims, what they did was extortion, plain and simple). Now I hear copyright, and I go so what.

"Our partners do not have broad take-down rights to remove anything they don’t like from our service. In limited cases, if they so choose, and based on exclusive agreements with their artists, partners can take down live performances."

So how and why was it taken down then? You say your partners can't, but they did.

He is laughing all the way to the bank, and you guys are all playing the moral high ground. He is a bottom feeder (and by his size, I would say he eats well), and he just used all of you guys to get more publicity for his service.

"YouTube said Friday that Universal Music abused the video-sharing site’s piracy filters when it employed them to take down a controversial video of celebrities and pop superstars singing and praising the notorious file-sharing service Megaupload."

(from the OP)
"There are a few different ways that content can be taken down off of YouTube concerning copyright claims. One is via ContentID, the automated system that matches fingerprints. One is via a DMCA takedown notice. And one is via YouTube's Content Management System. This last one doesn't get much attention and isn't that well known, but it's basically halfway in between the other two (loosely speaking), granting partners the ability to spot and block videos that aren't matched by ContentID, but without sending a DMCA takedown. If you're familiar with the details of the system (which it appears MegaUpload and its lawyers were not), it was actually easy to tell this was a CMS block by the message that appeared on the blocked video. It said "This video contains content from UMG, who has blocked it on copyright grounds." That's the message that shows up on CMS blocks. DMCA takedowns say that the video is "no longer available." "

One point I wanted to get across, that I thought Techdirt slightly mislead me on (not intentionally), was the following (and it's mostly in the slashdot discussion as a whole, but the following posts make it clear).

InsightIn140Bytes: "I don't have the right to delete anyones video at whim either, so why should big companies. Google needs to start running it's business better and hire people to process DMCA request."

AC "This wasn't a DMCA request."

InsightIn140Bytes: "That special access was given to Universal so that they wouldn't need to hire people to process DMCA requests."

Baloroth (2370816): "Exactly. The special access system is designed to fulfill Google's obligations under the DMCA. That makes this a DMCA takedown request under any reasonable definition of the term."

So, while this may not have been a DMCA request, this is arguably a consequence of the DMCA and may have arguably not happened if it weren't for the DMCA.

fat kim at the bank and laughing

i think umg is always right and i stand behind them way behind them now they have to do my songs dont they?
im also on their side so im beside and and behind them at the same time be careful where you step;? rexs songs

Re: fat kim at the bank and laughing at rex

Rex is always right i think, of course i would know im Rex but i cant speak for UMG till they do my songs and then all is well;; my dad always said"there are always more horses asses,than there are horses" unquote; Rexs Songs* trexsongs@yahoo.com can UMG write me back and do my songs?
here is one of rexs limericks;
"the slide distance race"
the slide distance race,was won by a horse named moneymaker,he stepped in his own road apples,and we watched his slide 20 acres" by rex foutch